dence in law of a consideration remaining with the drawer or endorser for the benefit of the holder; the implication of a debt does not arise till then; and under the money counts, if the bill itself is relied on as evidence, presentment according to the tenor of the bill, and every other fact necessary to show a default in the acceptor and notice of it to the drawer or endorser, must be proved.

In most parts of this country, the law is settled in almost exact accordance with the views expressed by Bayley, J., in Rowe v. Young, and in accordance, it is believed, with clear and settled principles. There is no difference between a promissory note, and the acceptance of a bill of exchange, qualified as to the place of payment; dicta in Wallace v. MeConnell. In both cases, when the instrument is payable at a specified time and place, presentment or demand at that place need not be alleged in the declaration, nor proved, in a suit against the maker or acceptor: but if the maker or acceptor was at the place designated, personally or by his agent, with funds ready for the payment of the demand, this may be shown by way of defence, not in bar of the debt, but in discharge of damages and costs, and will have the effect of a tender, and on such defence being made, *the money must be brought into court;(1) *366] and the plea of readiness at the time and place, in order to be good, must state, according to Lyon v. Williamson, 27 Maine, 149, not only that the party was ready to pay the money at the time and place named, but that he has ever since been ready there to pay the same, and that he brings the money into court: and though in Conn v. Gano, 1 Ohio, 483, it was held by a majority of the court, that while a demand at the place need not be alleged, yet if alleged it must be proved, yet the opinion of the minority of the court who held that the whole averment

(1) Wallace v. McConnell (of course overruling Picquet v. Curtis, 1 Sumner, 478); Carley v. Vance, 17 Massachusetts, 389; Payson v. Whitcomb, 15 Pickering, 212, 216; Eastman v. Fifield et al., 3 New Hampshire, 333; Otis v. Barton, 10 Id. 433; Wolcott v. Van Santvoord, 17 Johnson, 248; Caldwell v. Cassidy, 8 Cowen, 271; Nazro v. Fuller, 24 Wendell, 374; Green v. Goings, 7 Barbour's S. Ct. 653, 655; Eldred v. Hawes, 4 Connecticut, 466; Jackson v. Packer, 13 Id. 343, 358; Bond v. Storrs, Id. 412, 416; Bacon v. Dyer, 12 Maine, 19; Lyon v. Williamson, 27 Id. 149; Gammon v. Everett, 25 Id. 66; Paterson v. Vose, 43 Id. 559; Weed v. Van Houten, 4 Halsted, 189; Fitler v. Beckley, 2 Watts & Sergeant, 458; Middleton v. Boston Locomotive Works, 26 Penna. State, 258; Bowie, use of Ladd, et al. v. Duvall, 1 Gill & Johnson, 176, 181; Armistead v. Armisteads, 10 Leigh, 512; Allen v. Smith's Adm'r, 4 Harrington, 234; Clarke v. Gordon, 3 Richardson, 311; McNairy v. Bell, 1 Yerger, 502; Mulherrin v. Hannum, 2 Id. $1; Butterfield v. Kinzie, 1 Scammon, 445; Armstrong v. Caldwell, Id. 546; Irvine v. Withers, 1 Stewart, 234; Montgomery v. Elliott, use, &c., 6 Alabama, 701, 703; Cook v. Martin, 5 Smedes & Marshall, 379, 393; Sumner v. Ford & Co., 3 Pike, 389, 403; McKiel et al. v. The Real Estate Bauk, 4 Id. 592, 595; Hanley et al. v. Gaines, 5 Id. 38; Thompson & Rawle v. The Real Estate Bank, 5 Id. 59; Ringo v. Same, 8 English (13 Arkansas), 580; and see dicta in Bank of the State v. Bank of Cape Fear, 13 Iredell, 77; Edwards v. Hasbrook, 2 Texas, 578; Andrews v. Hoxie, Ib.; Martin v. Hamilton, 5 Harrington, 329; Reeve v. Pack, 6 Michigan, 240.

is immaterial, and surplusage, which may be struck out, and therefore need not be proved as laid, plainly correct, as indeed has been expressly decided in Remick v. O'Kyle et al., 12 Maine, 340. But in a suit against the drawer or endorser of a bill drawn, or note made payable at a particular place, demand at the appointed place must be averred in the declaration and proved.(1) However, in California, Indiana and Louisiana, the principle is established that when a note is made payable at a particular place, there must be a demand there, as a condition precedent before any suit.(2)

The decisions cited above as to the liability of a maker or acceptor, were mostly upon notes payable at a specified time; and there are dicta that if the note be payable on demand, at a specified place, no action will lie against the maker or acceptor without a demand: see dicta in cases cited below.(3) But these dicta appear to have proceeded on the supposition that the circumstance of the note being payable on demand in Sanderson v. Bowes, 10 East, 500, Dickinson v. Bowes, 16 Id. 110, S. C. on error, 5 Taunton, 30, was in some degree the ground of the decis ions in those cases; but though a passing dictum of Lord Ellenborough in the first of those cases might seem to point at that distinction, yet a perusal of the opinions delivered in Rowe v. Young, especially *those of Bayley, J., and Abbott, C. J., will show that that cir*[367 cumstance was not considered as being to any extent a ground of distinction, and that the law is precisely the same for the case of a note payable on demand, and one payable at a specified time. A note payable on demand is, in law, payable presently; there needs no demand to give a right of action, and the statute of limitations begins to run from the date: the specification of a place of payment cannot alter the nature of the legal liability, so as to render it not absolute and immediate. The point, however, is now settled by decisions; three adjudged cases have directly overruled this supposed distinction, and have determined, that upon a note payable on demand at a particular place, an averment of demand is not necessary in a suit against the maker;(4) unless where, as in Maine, a statute changes the common law.(5)

(1) Bank of the United States v. Smith; Watkins v. Crouch & Co., 5 Leigh, 522; Hartwell v. Candler, 5 Blackford, 215; Roberts v. Mason, 1 Alabama, 374; Montgomery v. Elliott, use, &c., 6 Id. 701, 703; Glasgow v. Pratte, 8 Missouri, 336; Gibb v. Mather, 2 Cr. & J. 254; S. Ct., 8 Bing. 214; dictum, Middleton v. Boston Locomotive Works, 26 Penna. State, 258.

(2) Funes y Carillo v. The Bank of the United States, 10 Robinson's Louisiana, 533, 540.

(3) Wild v. Van Valkerberg, 7 Cal. 167; Carley v. Vance, 17 Massachusetts, 389; Eastman v. Fifield et al., 3 New Hampshire, 333; Wallace v. McConnell, and in the opinion of Stanard, J., in Armistead v. Armisteads, 10 Leigh, 512.

(4) Haxtun v. Bishop, 3 Wend. 13, 20; McKenney v. Whipple, 21 Maine, 98; Montgomery. Elliott, use, &c., 6 Alabama, 701, 703; besides a dictum to the same purpose in Bowie, &c., v. Duvall, 1 Gill & Johnson, 176, 183.

(5) Paterson v. Vose, 43 Maine, 552.

It has been observed, above, that the maker or acceptor when sued on a note payable at a specified place, may excuse himself by showing his readiness to pay at the place, and by bringing the money into court: but the further question has been raised whether he can excuse himself by showing that the money has been lost by the intermediate failure of the banker at whose office the note was payable, a point which Abbott, C. J., in Rowe v. Young, p. 282, thought one of so much doubt that he declined giving an opinion upon it at that time. In Fitler v. Beckley, 2 Watts & Sergeant, 458, 462, Huston, J., inclined to the opinion that if the maker or acceptor, where the money is payable at a bank, pays the money into the bank to the credit of the payee, and leaves it there, it will be a complete discharge, though the money should be lost by robbery of the bank or otherwise; though he admitted that the case did not call for an opinion of the court on the point. If the note were in possession of the bank, as holder, or agent of the holder, so that payment into the bank would be very payment and discharge of the note, the conclusion of Mr. Justice Huston would probably be applicable; but if the note was not at the bank, and the bank had not authority from the holder, the creditor would have no right to make the bank the agent of the holder to receive payment of the note, although it might be payable at the bank; and probably the creditor would be responsible in the same way that he would for money rejected upon a tender.

*368]

*OF THE FORM OF NOTICE OF THE DISHONOR OF BILLS AND NOTES.

[For the circumstances which will dispense with all notice of dishonor of a note or bill of exchange, see the leading cases of Bickerdike v. Bollman, 2d Smith's Leading Cases, 5th Amer. ed. 53-65.]

MILLS, PLAINTIFF IN ERROR, V. THE PRESIDENT DIRECTORS, AND COMPANY OF THE BANK OF THE UNITED STATES,

DEFENDANTS IN ERROR.

In the Supreme Court of the United States.

FEBRUARY TERM, 1826.

[REPORTED FROM 11 WHEATON, 431-441.]

No form of notice to an endorser, of the default of the maker or acceptor of a note or bill, has been prescribed by law. The whole object of it is to inform the party to whom it is sent, that

payment

has been refused by the maker; that he is considered liable; and that payment is expected of him.

It is not necessary that the notice should state who is the holder of the

instrument.

A misdescription of the instrument will not vitiate the notice, unless the variance be such as to mislead the party as to the particular instru ment which has been dishonored. If, under all the circumstances of the case, the party could not fail to perceive that the note in suit was dishonored, the misdescription is unimportant.

It is not necessary that the notice should contain a formal allegation of the mode or place of demand.

THIS was a suit originally brought in the Circuit Court of Ohio, by the Bank of the United States, against the plaintiff in error, Peter Mills. The declaration was for $3,600, money lent and advanced.

The plaintiffs below, offered in evidence a promissory note, endorsed in blank by Mills, which note was in these words:

Dollars, 3,600.

"Chilicothe, 20 July, 1819.

Sixty days after date I promise to pay to Peter Mills, or order, at the office of discount and deposit of the Bank of the United States, at Chilicothe, three thousand six hundred dollars, for value received.

(Endorsed)

Peter Mills."

(Signed)

WOOD & EBert.

[*369

*On the upper right hand corner of the note was also endorsed, "3185. Wood & Ebert, 3,600 dollars, Sept. 18-21." This note had been sent to the office at Chilicothe, to renew a note which had been five or six times previously renewed by the same parties; and on the 22d day of September, 1819, immediately after the commencement of the hours of business, Levin Belt, Esq., Mayor of Chilicothe, duly presented it at the office of discount and deposit named in it, and there demanded payment of it, but there was no person there ready or willing to pay the same, and the said note was not paid, in consequence of which he immediately protested the said note for the non-payment and dishonor thereof, and immediately thereafter prepared a notice for each of the endorsers respectively, and immediately on the same day deposited one of said notices in the post office, directed to Peter Mills, at Zanesville (his place of residence), of which notice the following is a copy:

"Chilicothe, 22 September, 1819. Sir: You will hereby take notice, that a note drawn by Wood & Ebert, dated 20th day of September, 1819, for 3,600 dollars, payable to you, or order, in sixty days, at the office of discount and deposit of the Bank of the United States, at Chilicothe, and on which you are endorser, has been protested for non-payment, and the holders thereof look to you. Yours, respectfully, Levin Belt,

Peter Mills, Esq. Mayor of Chilicothe." It was further proven by the plaintiffs, that it had been the custom of the banks in Chilicothe, for a long time previously to the establishment of a branch in that place to make demand of promissory notes, and bills of exchange, on the day after the last day of grace (that is, on the 64th day), that the Branch Bank, on its establishment at Chilicothe, adopted that custom, and that such had been the uniform usage in the several banks in that place ever since.

The court below charged the jury.

1st. That the notice being sufficient to put the defendant upon inquiry, was good, in point of form, to charge him, although it did not name the person who was holder of the said note, nor state that the demand had been made at the bank when the note was due.

2d. That if the jury find that there was no other note payable in the office at Chilicothe, drawn by Wood & Ebert, and endorsed by defendant, except the note in controversy, the mistake in the date of the note made by the notary in the notice given to that defendant, does not impair the liability of the said defendant, and the plaintiffs have a right to recover.

*370] 3d. That should the jury find that the usage of banks, and of the office of discount and deposit in Chilicothe, was to make the demand of payment, and to protest and give notice, on the 64th day, such demand and notice are sufficient.

The correctness of the charge below on these points were the matters in question in the Supreme Court.

After argument by Mr. Wright, for the plaintiff in error, and by Mr. Webster, for the other side, the opinion of the court was delivered by

STORY, J. The first point is, whether the notice sent to the defendant at Chilicothe was sufficient to charge him as endorser. The court was of opinion, that it was sufficient, if there was no other note payable in the office at Chilicothe, drawn by Wood & Ebert, and endorsed by the defendant.